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Bid Event id number: evt0001028 KanCare Medicaid and chip capitated Managed Care Services Preface: High Priority Events and Items


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RFP Section 4




CONTRACT TERMS AND CONDITIONS



4.1 ACCEPTANCE
VENDOR’s acceptance of each term and condition must be initialed below. Any exceptions shall be explained in detail and submitted with the proposal. The State will take into consideration VENDOR’s willingness to accept without exception all terms and conditions contained in this Section. State reserves the right to reject any exceptions. All other CONTRACT terms or conditions VENDOR would like the State to consider must be submitted with the proposal. All other terms or conditions not timely submitted with the proposal will be rejected and may be grounds for rejection of the entire proposal. Please refer to RFP Section 3.2.15 for instructions concerning how to present the proposed Contract Terms and Conditions in the proposal.

4.1.1 Terms and Conditions

4.1.1.1 Contract Documents

This RFP, any amendments, the response and any response amendments of the CONTRACTOR, and the State of Kansas DA-146a (Contractual Provision Attachment) shall be incorporated into the written CONTRACT, which shall compose the complete understanding of the parties.

In the event of a conflict in terms of language among the documents, the following order of precedence shall govern:

Form DA146a;

written modification to the executed CONTRACT;

written CONTRACT signed by the parties;

the RFP, including any and all amendments; and

CONTRACTOR’s written proposal submitted in response to the RFP as finalized.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.2 Contract

The successful VENDOR will be required to enter into a written CONTRACT with the State. The CONTRACTOR agrees to accept the provisions of Form DA 146a (Contractual Provisions Attachment), which is incorporated into all CONTRACTs with the State and is incorporated into this RFP.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.3 Contract Formation

No CONTRACT shall be considered to have been entered into by the State until all statutorily required signatures and certification have been rendered and a written CONTRACT has been signed by the successful VENDOR.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)


4.1.1.4 Notices

All notices, demands, requests, approvals, reports, instructions, consents or other communications (collectively “notices”) that may be required or desired to be given by either party to the other shall be IN WRITING and addressed as follows:

Kansas Division of Purchases

900 SW Jackson St, Room 102N

Topeka, KS 66612-1286

RE: Bid Event ID Number EVT0001028

or to any other persons or addresses as may be designated by notice from one party to the other.
Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.5 Termination for Cause

The Director of Purchases may terminate this CONTRACT, or any part of this CONTRACT, for cause under any one of the following circumstances:

The CONTRACTOR fails to make delivery of goods or services as specified in the CONTRACT;

The CONTRACTOR provides substandard quality or workmanship;

The CONTRACTOR fails to perform any of the provisions of this CONTRACT; or

The CONTRACTOR fails to make progress as to endanger performance of this CONTRACT in accordance with its terms.


The Director of Purchases shall provide CONTRACTOR with written notice of the conditions endangering performance. If the CONTRACTOR fails to remedy the conditions within ten (10) days from the receipt of the notice (or such longer period as State may authorize in writing), the Director of Purchases shall issue the CONTRACTOR an order to stop work immediately. Receipt of the notice shall be presumed to have occurred within three (3) days of the date of the notice.
Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.6 Termination for Convenience

The Director of Purchases may terminate performance of work under the CONTRACT in whole or in part whenever, for any reason, the Director of Purchases shall determine that the termination is in the best interest of the State of Kansas. In the event that the Director of Purchases elects to terminate this CONTRACT pursuant to this provision, it shall provide the CONTRACTOR written notice at least 30 days prior to the termination date. The termination shall be effective as of the date specified in the notice. The CONTRACTOR shall continue to perform any part of the work that may have not been terminated by the notice.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.7 Debarment of State Contractors

Any CONTRACTOR who defaults on delivery or does not perform in a satisfactory manner as defined in this Agreement may be barred for up to a period of three (3) years, pursuant to K.S.A. 75-37,103, or have its work evaluated for pre-qualification purposes. CONTRACTOR shall disclose any conviction or judgment for a criminal or civil offense of any employee, individual, or entity which controls a company or organization that will perform work under this Agreement that indicates a lack of business integrity or business honesty. This includes (1) conviction of a criminal offense as an incident to obtaining or attempting to obtain a public or private CONTRACT or subcontract or in the performance of such CONTRACT or subcontract; (2) conviction under State or Federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, or receiving stolen property; (3) conviction under State or Federal antitrust statutes; and (4) any other offense to be so serious and compelling as to affect responsibility as a State CONTRACTOR. For the purpose of this section, an individual or entity shall be presumed to have control of a company or organization if the individual or entity directly or indirectly, or acting in concert with one or more individuals or entities, owns or controls 25 percent or more of its equity, or otherwise controls its management or policies. Failure to disclose an offense may result in disqualification of the bid or termination of the CONTRACT.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.8 Rights and Remedies

If this CONTRACT is terminated, the State, in addition to any other rights provided for in this CONTRACT, may require the CONTRACTOR to transfer title and deliver to the State in the manner and to the extent directed, any completed materials. The State shall be obligated only for those services and materials rendered and accepted prior to the date of termination.

In the event of termination, the CONTRACTOR shall receive payment prorated for that portion of the CONTRACT period services were provided to or goods were accepted by State subject to any offset by State for actual damages including loss of federal matching funds.
The rights and remedies of the State provided for in this CONTRACT shall not be exclusive and are in addition to any other rights and remedies provided by law.
Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.9 Force Majeure

The CONTRACTOR shall not be held liable if the failure to perform under this CONTRACT arises out of causes beyond the control of the CONTRACTOR. Causes may include, but are not limited to, acts of nature, fires, tornadoes, quarantine, strikes other than by CONTRACTOR’s employees, and freight embargoes.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.10 Waiver

Waiver of any breach of any provision in this CONTRACT shall not be a waiver of any prior or subsequent breach. Any waiver shall be in writing and any forbearance or indulgence in any other form or manner by State shall not constitute a waiver.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.11 Independent Contractor

Both parties, in the performance of this CONTRACT, shall be acting in their individual capacity and not as agents, employees, partners, joint ventures or associates of one another. The employees or agents of one party shall not be construed to be the employees or agents of the other party for any purpose whatsoever.


The CONTRACTOR accepts full responsibility for payment of unemployment insurance, workers compensation, social security, income tax deductions and any other taxes or payroll deductions required by law for its employees engaged in work authorized by this CONTRACT.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.12 Staff Qualifications

The CONTRACTOR shall warrant that all persons assigned by it to the performance of this CONTRACT shall be employees of the CONTRACTOR (or specified Subcontractor) and shall be fully qualified to perform the work required. The CONTRACTOR shall include a similar provision in any CONTRACT with any Subcontractor selected to perform work under this CONTRACT.

Failure of the CONTRACTOR to provide qualified staffing at the level required by the CONTRACT specifications may result in termination of this CONTRACT or damages.
Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.13 Subcontractors

The CONTRACTOR shall be the sole source of contact for the CONTRACT. The State will not subcontract any work under the CONTRACT to any other firm and will not deal with any subcontractors. The CONTRACTOR is totally responsible for all actions and work performed by its subcontractors. All terms, conditions and requirements of the CONTRACT shall apply without qualification to any services performed or goods provided by any subcontractor.

The State of Kansas requires tax clearance certificates for all subcontractors be submitted with the technical proposal, and that the VENDOR additionally provide subcontractor(s) legal company name, contact information and tax ID number (FEIN/TIN) as well.
Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.14 Proof of Insurance

Upon request, the CONTRACTOR shall be present an affidavit of Worker’s Compensation, Public Liability, and Property Damage Insurance to the Division of Purchases.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.15 Conflict of Interest

The CONTRACTOR shall not knowingly employ, during any period of this CONTRACT or any extension to it, any professional personnel who are also in the employ of the State and providing services involving this CONTRACT or services similar in nature to the scope of this CONTRACT to the State. Furthermore, the CONTRACTOR shall not knowingly employ, during the period of this CONTRACT or any extensions to it, any State employee who has participated in the making of this CONTRACT until at least two years after his/her termination of employment with the State.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.16 Confidentiality

The CONTRACTOR may have access to private or confidential data maintained by State to the extent necessary to carry out its responsibilities under this CONTRACT. CONTRACTOR must comply with all the requirements of the Kansas Open Records Act in providing services under this CONTRACT. CONTRACTOR shall accept full responsibility for providing adequate supervision and training to its agents and employees to ensure compliance with the Act. No private or confidential data collected, maintained or used in the course of performance of this CONTRACT shall be disseminated by either party except as authorized by statute, either during the period of the CONTRACT or thereafter. CONTRACTOR must agree to return any or all data furnished by the State promptly at the request of State in whatever form it is maintained by CONTRACTOR. On the termination of expiration of this CONTRACT, CONTRACTOR will not use any of such data or any material derived from the data for any purpose and, where so instructed by State, will destroy or render it unreadable.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.17 Nondiscrimination and Workplace Safety

The CONTRACTOR agrees to abide by all Federal, State and local laws, and rules and regulations prohibiting discrimination in employment and controlling workplace safety. Any violations of applicable laws or rules or regulations may result in termination of this CONTRACT.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.18 Environmental Protection

The CONTRACTOR shall abide by all Federal, State and local laws, and rules and regulations regarding the protection of the environment. The CONTRACTOR shall report any violations to the applicable governmental agency. A violation of applicable laws or rule or regulations may result in termination of this CONTRACT for cause.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.19 Hold Harmless

The CONTRACTOR shall indemnify the State against any and all loss or damage to the extent arising out of the CONTRACTOR's negligence in the performance of services under this CONTRACT and for infringement of any copyright or patent occurring in connection with or in any way incidental to or arising out of the occupancy, use, service, operations or performance of work under this CONTRACT.


The State shall not be precluded from receiving the benefits of any insurance the CONTRACTOR may carry which provides for indemnification for any loss or damage to property in the CONTRACTOR's custody and control, where such loss or destruction is to state property. The CONTRACTOR shall do nothing to prejudice the State's right to recover against third parties for any loss, destruction or damage to State property.
Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.20 Care of State Property

The CONTRACTOR shall be responsible for the proper care and custody of any State owned personal tangible property and real property furnished for CONTRACTOR's use in connection with the performance of this CONTRACT. The CONTRACTOR shall reimburse State for such property's loss or damage caused by CONTRACTOR, normal wear and tear excepted.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.21 Prohibition of Gratuities

Neither the CONTRACTOR nor any person, firm, or corporation employed by the CONTRACTOR in the performance of this CONTRACT shall offer or give any gift, money, nor anything of value, neither any promise for future reward nor compensation to any State employee at any time.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.22 Retention of Records

Unless the State specifies in writing a different period of time, the CONTRACTOR agrees to preserve and make available at reasonable times, and at no cost to the State or Federal government, all of its books, documents, papers, records and other evidence involving transactions related to this CONTRACT for a period of six (6) years from the date of the expiration or termination of this CONTRACT.


Matters involving litigation shall be kept for one (1) year following the termination of litigation, including all appeals, if the litigation exceeds six (6) years.
The CONTRACTOR agrees that authorized Federal and State representatives, including but not limited to, personnel of the using agency; independent auditors acting on behalf of State and/or Federal agencies shall have access to and the right to examine records during the CONTRACT period and during the six (6) year post CONTRACT period. Delivery of and access to the records shall be within five (5) business days at no cost to the state.
Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.23 Antitrust

If CONTRACTOR elects not to proceed with an antitrust cause of action resulting from the performance of the Agreement, CONTRACTOR assigns to the State all rights to and interests in any cause of action it has or may acquire under the anti-trust laws of the United States and the State of Kansas relating to the particular products or services purchased or acquired by the State pursuant to this Agreement.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)


4.1.1.24 Modification

This CONTRACT shall be modified only by the written agreement and approval of the parties. No alteration or variation of the terms and conditions of the CONTRACT shall be valid unless made in writing and signed by the parties. Every amendment shall specify the date on which its provisions shall be effective.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.25 Assignment

The CONTRACTOR shall not assign, convey, encumber, or otherwise transfer its rights or duties under this CONTRACT without the prior written consent of the State. State may reasonably withhold consent for any reason.

This CONTRACT may terminate for cause in the event of its assignment, conveyance, encumbrance or other transfer by the CONTRACTOR without the prior written consent of the State.
Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.26 Third Party Beneficiaries

This CONTRACT shall not be constructed as providing an enforceable right to any third party.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.27 Captions

The captions or headings in this CONTRACT are for reference only and do not define, describe, extend, or limit the scope or intent of this CONTRACT.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.28 Severability

If any provision of this CONTRACT is determined by a court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of this CONTRACT shall not be affected and each provision of this CONTRACT shall be enforced to the fullest extent permitted by law.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.29 Governing Law

This CONTRACT shall be governed by and construed in accordance with the procedural and substantive laws of the State of Kansas.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.30 Jurisdiction

The parties shall bring any and all legal proceedings arising under this CONTRACT in the State of Kansas, District Court of Shawnee County. The United States District Court for the State of Kansas sitting in Topeka, Shawnee County, Kansas, shall be the venue for any Federal action or proceeding arising hereunder in which the State is a party. The Eleventh Amendment of the United States Constitution is an inherent and incumbent protection with the State and need not be reserved, but prudence requires the State to reiterate that nothing related to this CONTRACT shall be deemed a waiver of the Eleventh Amendment. CONTRACTOR shall be responsible for all the State’s reasonable attorney’s fees, costs and expenses related to CONTRACTOR’s negligence or breach of CONTRACTOR’s obligations under the CONTRACT. CONTRACTOR waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on CONTRACTOR in the manner authorized by applicable law or court rule.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)
4.1.1.31 Mandatory Provisions

The provisions found in Contractual Provisions Attachment (DA 146a) which is attached are incorporated by reference and made a part of this CONTRACT.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.32 Integration

This CONTRACT, in its final composite form, shall represent the entire agreement between the parties and shall supersede all prior negotiations, representations or agreements, either written or oral, between the parties relating to the subject matter hereof. This Agreement between the parties shall be independent of and have no effect on any other CONTRACTs of either party.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.33 Criminal or Civil Offense

Any conviction for a criminal or civil offense of an individual or entity that controls a company or organization or will perform work under this CONTRACT that indicates a lack of business integrity or business honesty must be disclosed. This includes (1) conviction of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract or in the performance of such contract or subcontract; (2) conviction under State or Federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property; (3) conviction under State or Federal antitrust statutes; and (4) any other offense to be so serious and compelling as to affect responsibility as a State CONTRACTOR. For the purpose of this section, an individual or entity shall be presumed to have control of a company or organization if the individual or entity directly or indirectly, or acting in concert with one or more individuals or entities, owns or controls 25 percent or more of its equity, or otherwise controls its management or policies. Failure to disclose an offense may result in disqualification of the bid or termination of the CONTRACT.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.34 Injunctions

Should Kansas be prevented or enjoined from proceeding with the acquisition before or after CONTRACT execution by reason of any litigation or other reason beyond the control of the State, CONTRACTOR shall not be entitled to make or assert claim for damage by reason of said delay.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.35 Statutes

Each and every provision of law and clause required by law to be inserted in the CONTRACT shall be deemed to be inserted herein and the CONTRACT shall be read and enforced as though it were included herein. If through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then on the application of either party the CONTRACT shall be amended to make such insertion or correction.

Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.36 Federal, State and Local Taxes

Unless otherwise specified, the proposal price shall include all applicable Federal, State and local taxes. The CONTRACTOR shall pay all taxes lawfully imposed on it with respect to any product or service delivered in accordance with this CONTRACT. The State of Kansas is exempt from State sales or use taxes and Federal excise taxes for direct purchases. These taxes shall not be included in the VENDOR's price quotation. Upon request, the State shall provide to the CONTRACTOR a certificate of tax exemption.

The State makes no representation as to the exemption from liability of any tax imposed by a governmental entity on the CONTRACTOR.
Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.37 Accounts Receivable Set-Off Program

If, during the course of this CONTRACT the CONTRACTOR is found to owe a debt to the State of Kansas, agency payments to the CONTRACTOR may be intercepted/set-off by the State of Kansas. Notice of the setoff action will be provided to the CONTRACTOR. Pursuant to K.S.A. 75-6201 et seq, CONTRACTOR shall have the opportunity to challenge the validity of the debt. If the debt is undisputed, the CONTRACTOR shall credit the account of the agency making the payment in an amount equal to the funds intercepted.


K.S.A 75-6201 et seq. allows the Director of Accounts & Reports to set-off funds the State of Kansas owes CONTRACTORs against debts owed by the CONTRACTORs to the State of Kansas. Payments set-off in this manner constitute lawful payment for services or goods received. The CONTRACTOR benefits fully from the payment because its obligation to the State is reduced by the amount subject to set-off.
Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.38 Definitions

A glossary of common procurement terms is available at http://da.ks.gov/purch, under "Purchasing Forms.” In addition, a glossary and acronyms document of terms used in this document is provided in Attachment C.


Acceptance: ____ Yes (Initial) ____ No (Initial and Provide a Detailed Explanation of Exception)

4.1.1.39 HIPAA Confidentiality
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